Gawker posted excerpts from a tape on Monday that features the trio nude in a bedroom and a bathroom. The 12-minute video was said to be shot inside Peniche’s apartment two years ago, and within it, Gayheart said she was high. At one point Dane revealed his alter-ego name, “Cocaine Manor.”

Tuesday morning a lawyer for the TV star husband and wife issued a statement.

“Although the participants are nude, the tape is not a ‘sex tape.’ It is a private tape made for only my clients’ personal use,” attorney Marty Singer said in a statement to Access. “If anyone exploits the tape, they will be violating my clients’ rights and will be exposed to significant liability.”

A rep for Peniche also spoke out, saying, “This is an unfortunate incident where consenting adults who were having a little a fun are now victims of having personal property stolen and private matters made public.”

But more bizarre than the tape itself, is one theory of how it was allegedly leaked.

According to multiple online reports, troubled country star Mindy McCready, who was Peniche’s houseguest following their appearance on “Celebrity Rehab,” reportedly stole Peniche’s computer hard drive, which contained the footage. The two reportedly had an argument about money.

Peniche was spotted by the paparazzi on Monday night was asked, “How are you doing tonight Kari Ann? Are you going to pursue legal action Kari Ann?”

The former beauty queen would not comment but only smirked and she silently speed away from an L.A. restaurant.

On Tuesday morning, Access spoke with a family member close to Peniche, who was heartbroken over the release of the tape, but still said the family, “loves (Kari Ann) very much.”

The family member said the Peniche family is not happy with the choices she has made. The family member also said the video footage of her smirking is not representative of how she is actually handling the situation.

“She doesn’t think its funny at all,” the family member told Access.

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